Evidence Flashcards
Relevance
Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. MATERIAL + PROBATIVE
Rule 403- Court’s Discretion to Exclude Relevant Evidence
Trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of:
Unfair prejudice (jury decides on emotion)
Confusion of the issues
Misleading the jury
Undue delay
Waste of time
Needless presentation of cumulative evidence
Similar Occurrences- Plaintiff’s Accident History
Similar Occurrences are generally inadmissible except:
Accident history- evidence plaintiff made similar false claims relevant to prove present claim likely false
Accident history- evidence of prior accidents admissible where causation of plaintiff’s injury is at issue (injury to the same part of the body)
Similar Occurrences- Defendant’s Accident History
Evidence of similar occurrences generally inadmissible except:
Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances admissible to prove:
(1) existence of dangerous condition
(2) that dangerous condition was the cause of present injury and
(3) defendant had notice of the dangerous condition
Absence of similar accidents usually not admissible but:
Evidence of the absence of complaints admissible to show defendant’s lack of knowledge of danger
Similar Occurrences to Prove Intent
Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case:
Sales of similar property Rebutting claim of impossibility Causation Habit and Business Routine Evidence Industry Custom can be admitted as evidence of the standard of care
Liability Insurance
Not admissible to show whether the party acted negligently or prove fault. Admissible for other relevant purposes:
Prove ownership or control
Impeach a witness (show bias)
As part of an admission of liability
Subsequent Remedial Measures
Not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. Admissible for another relevant purpose:
Prove ownership or control if disputed
Rebut a claim that a precaution was not feasible or
Prove that opposing party destroyed evidence
Civil Settlements and Settlement Negotiations
Evidence of settlement or offer to compromise a civil claim is inadmissible to:
Prove or disprove validity or amount of disputed claim
Impeach a witness by prior inconsistent statement or contradiction
Conduct or statements made while negotiating are also inadmissible for these purposes.
For this to apply, there must be a claim or some indication that a party was going to make a claim.
Exceptions:
Admissible to impeach a witness on bias grounds.
Conduct or statements made during civil dispute negotiations with regulatory, investigative, or enforcement authority not excluded in a civil case. Ex: admissions in negotiation with SEC can be admitted in related criminal trial
Plea Discussions
Inadmissible: Offers to plead guilty Withdrawn guilty pleas Actual pleas of no contest or Statements of fact made during any of the above plea discussions
Actual guilty plea generally admissible in related litigation as statement of an opposing party.
Payments of an Offers to Pay Medical Expenses
Inadmissible to prove liability for the injury. Unlike settlement negotiations, admissions of fact accompanying such payments and offers are admissible.
Character Evidence- Defendant’s Character in a Criminal Case
Prosection cannot initiate evidence of defendant’s bad character to show conduct in conformity.
Because defendant’s life and liberty at stake, defendant can present a character witness that testifies to the defendant’s good reputation for a pertinent trait and who can give their personal opinion concerning that trait. OPINION + REPUTATION
If defendant opens the door, prosecution can rebut. They can cross examine the character witness about SPECIFIC ACTS to show lack of knowledge, not to prove defendant’s bad character. They cannot prove these specific acts with extrinsic evidence. Can also introduce their own character witness to provide REPUTATION or OPINION evidence about defendant’s bad character for the trait in question.
Character Evidence- Victim’s Character in Criminal Case
Except in sexual assault cases, defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when its relevant to show defendant’s innocence. Usually self-defense cases.
Evidence of a victim’s character might be offered for non-propensity purpose like to show defendant’s state of mind. (Ex: defendant knew about a prior bad act of the victim’s that explains why they responded to the victim’s aggression)
Prosecution can rebut with REPUTATION OR OPINION evidence of the victim’s good character for the same trait or defendant’s bad character for the same trait.
In a homicide case, if defendant pleads self-defense, evidence of ANY KIND that the victim was the first aggressor opens the door to evidence that the victim had a good character for peacefulness.
Character Evidence- Rape Victims
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.
Criminal case exceptions:
Specific instances of victim’s sexual behavior admissible to prove that someone other than defendant is the source of semen, injury, or other physical evidence.
Specific instances of sexual behavior between defendant and victim admissible by prosecution for any reason and by defense to prove consent.
Civil case exceptions:
Evidence of alleged victim’s sexual behavior admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to an party. Evidence of an alleged victim’s reputation only admissible if placed in controversy by the victim.
Character Evidence- Civil Cases
Character evidence generally inadmissible to prove conduct in conformity. Does not matter which party seeks to offer the evidence.
Exception is that it is admissible when character is directly in issue. When character is in issue, all forms of character evidence are admissible.
Admitting Evidence of Other Misconduct for a Non-Character Purpose
Can be done in a civil or criminal case. Admissible if relevant to some issue other than their character or propensity to commit the crime charged (or alleged act). Defendant must be contesting the issue.
Common purposes: Motive Intent Absence of mistake or accident Identity Common plan or scheme
Misconduct can be proved by evidence like witness testimony or the defendant’s criminal conviction. There must be sufficient evidence to support a jury finding that the defendant committed the other misconduct.
If a prosecutor is going to use this, they must provide written notice in advance of trial.
Character Evidence- Defendant in Sex Crime Cases
Evidence of a defendant’s other acts of sexual assault or child molestation admissible in criminal or civil case where defendant is accused of committing an act of sexual assault or child molestation.
Party intending to offer this evidence must disclose 15 days before trial.
Authentication of Writings
Writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows the writing is what proponent claims it is. Proof must be sufficient to support jury finding of genuineness.
Methods of authenticating writings
Methods:
Opponent’s admission
Eyewitness Testimony- saw it executed or heard it acknowledged.
Handwriting Verification- opinion of lay witness who is familiar (not for purposes of current litigation), opinion of expert, jury comparison
Ancient documents- 20 years old, condition that creates no suspicion of authenticity, found in a place where such writing likely to be kept
Reply letter doctrine
Authenticating photos and videos
Admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. Don’t need photographer. Someone familiar with the scene, object, or person is okay.
Unattended camera- showing camera properly operating at relevant time and photograph downloaded and developed from that camera.
Xray- show process used accurate, machine in working order, operator qualified to operate. Establish custodial chain.
Authentication of Oral Statements
Voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.
Best Evidence Rule
To prove the contents of a writing, the original writing must be produced if terms are material. Secondary evidence like oral testimony, admissible only if proponent provides satisfactory excuse for the original’s absence.
Rule does not apply when witness has personal knowledge of the facts.
Exceptions to Best Evidence Rule
Summaries of voluminous records
Certified public records
Writing is collateral to litigated issue
Testimony or written admission of opponent
Real Evidence
Must be relevant and meet following requirements:
Authenticated by testimony or evidence of substantially unbroken chain of possession
Condition of object must be shown to be in substantially same condition at trial
Competency of witnesses
(1) evidence sufficient to support finding that witness has personal knowledge
(2) witness must give oath or affirmation to testify truthfully
Juror testifying in inquiry into verdict or indictment
Jurors cannot testify about what occurred during deliberations or anything that may have affected their vote, but they may testify to
Whether extraneous prejudicial information improperly brought to jury’s attention
Whether outside influence was improperly brought to bear on any juror
Whether there was a mistake on the verdict form
Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant. Must be significant motivating factor in juror’s vote to convict.
Refreshing recollection- present recollection revived
A witness may use any writing or object for the purpose of refreshing their present recollection. Cannot read from the writing while testifying. Writing is not in evidence.
Adverse party entitled to:
Have the writing produced at trial
Cross-examine witness about it
Introduce portions of the writing relating to the witnesses’ testimony into evidence.
Past recollection recorded
Where witnesses states they cannot recall an event to testify fully and accurately, even after their recollection was refreshed by looking at the document, the record itself may be introduced if proper foundation:
Witness has insufficient recollection to testify fully and accurately
Witness had personal knowledge of the facts in the document when record was made
Record made by witness or under their direction, or adopted by them
Record was made when matter fresh in witness’ mind
Witness vouches for the accuracy of the record at the time it was made or adopted.
Record may be read into evidence and heard by the jury but it is not admitted as an exhibit unless offered by the adverse party.
Lay opinions
Opinions by lay witnesses are generally inadmissible. There are situations where no better evidence exists though. Cannot give an opinion of legal issues like whether they acted as an agent or a contract was made. Admissible when:
Rationally based on witness’ perception
Helpful to a clear understanding of their testimony or to determine a fact in issue
Not based on scientific, technical, or other specialized knowledge
Examples:
General appearance or condition of a person, state of emotion, matters involving sense recognition, voice or handwriting ID, speed of moving object, value of own services, rational or irrational nature of another’s conduct, intoxication
Expert opinions
(1) subject matter must be one where scientific, technical, or other specialized knowledge would assist trier of fact.
(2) opinion based on sufficient facts or data
(3) opinion the product of reliable principles and methods
(4) expert must have reliably applied the principles and methods to the facts of the case
Must be qualified. They must possess special knowledge, skill, experience, training, or education.
Must have proper factual basis for their opinion:
(1) personal observation
(2) facts made known to them at trial
(3) facts reasonably relied upon by other experts in the field. Don’t have to be admissible as evidence (can rely on hearsay)
Cannot disclose inadmissible evidence to jury unless court determines probative value in helping evaluate expert’s opinion substantially outweighs prejudicial effect.
Daubert- judge as gatekeeper of expert testimony
Judge determines reliability of experts’ principles and methodologies:
Testing of principle or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication
